Defendant,
Marvin Dixon, has previously sought review by this court of a
related matter. In connection with an earlier guilty plea to
one count of attempted aggravated crime against nature, we
vacated Defendant's illegally excessive sentence and
remanded the case for resentencing. State v. Dixon,
16-132 (La.App. 3 Cir. 9/28/16) (unpublished opinion).

On
December 20, 2016, the State filed a bill of information
charging Defendant with two counts of aggravated incest and
one count of aggravated crime against nature. On March 10,
2017, Defendant filed a motion to quash, which was denied on
March 15, 2017. On the same date, he entered an
Alford plea[1] to one count of aggravated incest, a
violation of La.R.S. 14:78.1.[2] He waived sentencing delays and
received a sentence of twenty years at hard labor. The trial
court dismissed the other two counts pursuant to a State
motion.

Defendant
appeals and assigns a single error, but breaks it into three
main arguments. For the following reasons, we affirm the
trial court's denial of Defendant's motion to quash,
and we affirm Defendant's sentence.

FACTS

At the
plea hearing, the State recited the following facts, without
objection by Defendant:

Your Honor, this offense happened between January 1st, 2012
and June 1st, 2012. The victim's date of birth is April
5th, 2000, making her between eleven and twelve years of age
at all times herein, and the victim was related to Mr. Dixon
as his granddaughter. And at times when she was exposed to
him and in his presence, he did commit a sexual battery upon
her, also indecent behavior with juveniles, and molestation
of a juvenile in that he would lewdly fondle and touch her
with the intent to arouse and satisfy his sexual desires.
Specifically, the behavior that he did with this victim,
who's [sic] initials are E.D., was touch her breast,
vagina, and buttocks with his hand. In support of that
I'd like to offer, file, and introduce the documents
filed in discovery in this matter and the actual filing of
discovery relates to 87, 680, but is also related to the new
docket number, 90, 481. And I would like to rely on those as
part of my factual basis, but I would submit to the Court
that were this case to go to trial, that is what the State
would prove at trial.

ASSIGNMENT
OF ERROR

Defendant
assigns a single error, but divides it into three major
arguments. His general argument is that the trial court erred
by denying his motion to quash.

Double
Jeopardy

Defendant
first argues the current case was a second prosecution which
violated the constitutional protection against double
jeopardy. Although double jeopardy was mentioned in the
written motion, the State observes that Defendant did not
argue it at the March 15 hearing. However, we will address
the argument because double jeopardy can be raised at any
time. La.Code Crim.P. art. 594. Further, a double jeopardy
error would require dismissal of the conviction.

As the
State points out, Defendant pled guilty to a sex offense
involving the victim, E.D.[3] In the prior case, he pled to a sex
offense committed against D.D.[4]The present appeal and the
previous appeal address two pleas to two different offenses
against two different victims. Thus, it is clear that double
jeopardy is not implicated in the guilty plea. To the extent
Defendant's argument raises concerns regarding the bill
of information, any argument regarding the bill is moot given
the ultimate plea.

Plea
Agreement

Defendant
next argues that the present prosecution violates the plea
agreement from the earlier case. In the earlier case, the
State agreed to dismiss two counts: one count of aggravated
crime against nature, which was alleged to have been
committed against D.D. between July 11, 2010 and February 14,
2015, and another count of aggravated crime against nature,
alleged to have been committed against E.D. between May 1,
2012 and September 30, 2012. The dismissal of the latter
count appears problematic in the context of the current
argument because, as already noted, Defendant entered an
Alford plea to a sex offense, aggravated incest,
against E.D.

Thus,
Defendant contends he was prosecuted for conduct that was
dismissed pursuant to the plea agreement in the earlier case.
It is true that both bills alleged that he committed improper
sexual acts against the victim: "sexual battery,
indecent behavior with juveniles and molestation of a
juvenile." The second bill also charged that Defendant
"did lewdly fondle and touch" E.D. The former bill
alleged the acts occurred between May 1, 2012 and September
30, 2012; the present bill alleged acts between January 1,
2012 and June 1, 2012. Thus, both bills alleged the same
general sex acts against the same victim and both alleged
that at least some of the acts occurred in May and June of
2012.

Although
the record is difficult to decipher, after a careful analysis
of the facts and circumstances surrounding the pleas, we find
Defendant is not being prosecuted again for conduct dismissed
as part of the plea agreement in the previous case. Rather,
as discussed below, the second bill was brought to correct
errors that resulted from all parties relying on an incorrect
version of a statute.

Vindictive
Prosecution

Defendant's
third and final argument is that the current prosecution
violates constitutional due process protections because the
State is punishing him for his success in his earlier appeal.
As he points out, vindictive prosecution is prohibited by
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.
2072 (1969). This court has discussed Pearce:

However, the fact that he received harsher treatment, i.e.,
being charged with the previously dismissed crimes after he
successfully appealed his prior guilty pleas and received a
longer sentence, requires a determination as to whether he
has suffered a deprivation of due process. Id.
(citing North Carolina v. Pearce, 395 U.S. 711, 89
S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

The
Pearce court explained the due process issue raised,
as such:

Due process of law, then, requires that vindictiveness
against a defendant for having successfully attacked his
first conviction must play no part in the sentence he
receives after a new trial. And since the fear of such
vindictiveness may unconstitutionally deter a defendant's
exercise of the right to appeal or collaterally attack his
first conviction, due process also requires that a defendant
be freed of apprehension of such retaliatory motivation on
the part of the sentencing judge.

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